Competition policy in healthcare : frontiers in insurance-based and taxation-funded systems / Mary Guy.

Format:

Book

Author/Creator:

Guy, Mary (Law professor), author.

Language:

English

Subjects (All):

Medical care--Law and legislation--European Union countries.

Medical care.

Antitrust law--European Union countries.

Antitrust law.

Medical care--Law and legislation.

European Union countries.

Physical Description:

1 online resource (xxxix, 262 pages) : digital, PDF file(s)

Place of Publication:

Cambridge : Intersentia, 2019.

System Details:

text file

PDF

Summary:

This book brings a unique, comparative approach to competition policy in healthcare. By examining an insurance-based and a taxation-funded healthcare system, insights emerge into the applicability and application of general competition law and healthcare-specific competition rules at EU and Member State level. The developing interactions between healthcare regulators and competition authorities, and issues arising from hospital mergers with regard to general and healthcare-specific merger control both receive in-depth analysis. Insights into competition reforms in the Dutch and English healthcare systems show that the term "healthcare" is problematic: there are important distinctions between public and private healthcare, and between healthcare providers and healthcare purchasers. Even a focus on "healthcare providers" has limitations given the myriad services which comprise healthcare delivery. Competition reforms in healthcare attract controversy if seen exclusively as an end in themselves. This book argues that a nuanced approach is needed: competition in healthcare needs to be tempered, and even focused, by national and EU commitments to solidarity. Following Brexit, scholars and policy makers will maintain interest in comparative and EU law research. This book will thus be essential reading for anyone wishing to understand the mutual implications of EU competition law and policy for developing national healthcare reforms. Dr Mary Guy is a Lecturer in Law at Lancaster Law School and is directing the law component of a British Academy/Leverhulme Trust-funded interdisciplinary project on 'EU Health Policy and Law - Shaping a Future Research Agenda' in 2018-2020. She is a member of the European Association of Health Law, the Society of Legal Scholars, the Socio-Legal Studies Association, the British Association of Comparative Law, and the Chartered Institute of Linguists Educational Trust.

Contents:

1 Competition in Healthcare p. 3

2 Competition Policy in Healthcare - A Starting-Point p. 8

3 Overview of Competition Reforms in Dutch and English Healthcare p. 11

4 Competition Policy in (Dutch and English) Healthcare - Two Narratives p. 13

4.1 Narrative 1: The Comparative Approach p. 14

4.2 Narrative 2: Means to an End or System Change? p. 17

Chapter 1 Competition Reforms in Dutch and English Healthcare and the Development of Competition Policy p. 19

1 The Netherlands p. 20

1.1 Competition in Dutch Healthcare - The 2006 Reforms and the Dutch 'Healthcare Triangle' p. 20

1.2 The Development of Competition Policy in Dutch Healthcare p. 27

1.2.1 Relevant Legislation p. 27

1.2.1.1 Zvw p. 28

1.2.1.2 Wmg. p. 29

1.2.1.3 Second Chamber Documentation, 34 445, Amendments to the Wmg (Parliamentary Sessions 2015-16, 2016-17, 2017-18) p. 30

1.2.2 Documentation by the ACM and the NZa p. 31

1.2.2.1 Richtsnoeren voor de Zorgsector (Guidelines for the Healthcare Sector) p. 33

1.2.2.2 Samenwerkingsprotocollen (Cooperation Protocols) p. 36

2.1 Competition in the NHS and the 'Four Categories of English Healthcare' p. 38

2.1.1 Category 1 - Public Purchaser and Public Provider p. 41

2.1.2 Category 2 - Public Purchaser and Private Provider p. 41

2.1.3 Category 3 - Private Purchaser and Public Provider p. 43

2.1.4 Category 4 - Private Purchaser and Private Provider p. 43

2.2 Setting the Scene for the HSCA 2012 Reforms: Competition Policy in the NHS 'Quasi-Market' p. 44

2.2.1 NHS Internal Market (Conservative Governments 1987-97) p. 44

2.2.2 'Choice and Competition' (New Labour Governments 1997-2010) p. 46

2.2.3 'Opening Up Public Services' (Liberal Democrat-Conservative Coalition Government 2010-15) p. 49

2.3 The Development of the HSCA 2012 Competition Framework p. 51

2.3.1 Pre-NHS Future Forum Examination p. 51

2.3.2 Post-NHS Future Forum Examination p. 54

2.4 Developments Subsequent to the Health and Social Care Bill p. 57

Chapter 2 Competition Law: Its Applicability and Application in Dutch and English Healthcare p. 61

2 The EU Competition Law Framework as Defined by Reference to the 'Undertaking' Concept p. 64

2.1 Overview of the 'Undertaking' Concept p. 66

2.2 The Relevance of Solidarity in a Healthcare Context p. 68

2.2.1 Solidarity and Competition in Healthcare - General Considerations p. 68

2.2.2 Solidarity and the 'Exemption Perspective - Healthcare Purchasing (AOK Bundesverband and FENIN) p. 70

2.2.2.1 AOK Bundesverband p. 71

2.2.2.2 FENIN p. 71

2.2.3 Solidarity and the 'Exception Perspective - Healthcare Provision (Ambulanz Glöckner) p. 73

2.3 The EU Competition Law Framework and the Dutch and English Healthcare Sectors p. 74

3 The Emergence of National Frameworks for Applying Competition Law in National Healthcare Cases p. 75

3.1 The Netherlands p. 75

3.1.1 Protecting the 'Fundamental Principle' of Universal Access p. 75

3.1.2 Treatment of Purchasers and Providers p. 76

3.1.3 National Framework Resulting from Healthcare Reforms p. 77

3.2.1 Protecting the 'Fundamental Principle' of Universal Access p. 78

3.2.1.1 Competition within the 'Core' of Universal Access in English Healthcare p. 79

3.2.1.2 Competition Policy within the 'Core' of Universal Access in English Healthcare p. 81

3.2.2 Treatment of Purchasers and Providers p. 83

3.2.3 National Framework Resulting from Healthcare Reforms p. 87

3.3 Parallel Application of National and EU Competition Rules p. 90

3.3.1 The Netherlands p. 91

4 Application of Competition Law in Dutch and English Healthcare p. 93

4.1 Applying the Anticompetitive Agreements and Abuse of Dominance Provisions to the Healthcare Sector - General Remarks p. 93

4.1.1 Anticompetitive Agreements and Healthcare p. 93

4.1.2 Abuse of Dominance and Healthcare p. 96

4.1.3 Competition Law and Healthcare - General Concluding Comments p. 98

4.2 The Netherlands p. 98

4.2.1 Application of the Anticompetitive Agreements Provisions p. 98

4.2.1.1 Continuity of Care p. 99

4.2.1.2 Professional Associations in the Dutch Healthcare Sector p. 101

4.2.1.3 Samenwerking (Collaborative Working) - A Specialism-Based Approach by the ACM? p. 103

4.2.2 Application of the Abuse of Dominance Provisions p. 103

4.3.1 Application of the Anticompetitive Agreements Provisions p. 106

4.3.1.1 Category 4 - Private Purchasers, Private Providers p. 107

4.3.1.2 Category 3 - Private Purchasers, Public Providers p. 108

4.3.1.3 Category 2 (Public Purchaser, Private Provider) and Category 1 (Public Purchaser, Public Provider) p. 109

4.3.2 Application of the Abuse of Dominance Provisions p. 111

Chapter 3 Sectoral Regulation: The Relationship between the Competition Authority and the Healthcare Regulator in the Netherlands and England p. 115

2 Defining the Relationship between the Competition Authority and Sectoral Regulator in Dutch Healthcare - A Separate Powers Model p. 120

2.1 The NZa's Competition Powers, 2006-15 p. 122

2.1.1 SMP Powers (Article 48 Wmg) p. 122

2.1.2 Power to Intervene in the Drafting of Contracts (Article 45 Wmg) p. 123

2.1.3 Possible Overlap between NZa and ACM Powers, 2006-15 p. 124

2.2 The Separate Powers Model 2015-18 and Future Direction p. 126

3 Defining the Relationship between the Competition Authority and Sectoral Regulator in English Healthcare - Concurrent Powers and Separate Powers Models? p. 128

3.1 The Position of the Competition Authority vis-à-vis the Healthcare Sector in England Pre-HSCA 2012 and the Development of Concurrent Powers p. 130

3.2 Defining the Scope of Concurrent Powers by Reference to Section 72 HSCA 2012, ERRA 2013 and the 2014 Concurrency Regulations p. 133

3.2.1 Section 72 HSCA 2012 - The Legal Basis for Concurrent Powers in English Healthcare p. 133

3.2.2 ERRA 2013 and the 2014 Concurrency Regulations - Refocusing the Scope of Concurrent Powers in English Healthcare p. 135

3.3 NHS Improvement's 'Competition-Related' Powers - A Variation on the Separate Powers Model? p. 139

3.3.1 The Competition Oversight Condition of the NHS Provider Licence p. 139

3.3.2 The 2013 Regulations p. 141

3.3.3 Relationship between NHS Improvement's Competition-Related Powers and its Concurrent Powers p. 142

4 Factors Influencing the Relationship between Regulator and Competition Authority p. 144

4.1 The Regulators Focus on Patients p. 144

4.1.1 Tire Netherlands: The NZa's Separate Powers and the General Consumer Interest p. 144

4.1.1.1 Overview of the General Consumer Interest under Article 3(4) Wmg p. 145

4.1.1.2 The NZa's Separate Powers (2006-15) and the General Consumer Interest Framework p. 145

4.1.1.3 Effect of the General Consumer Interest on the Separate Powers Model p. 147

4.1.2 England: The Concurrent Powers and Separate Powers Models, NHS Improvement's Focus on Patients and the Effect of NHS Improvement's Duty on the Separate Powers and Concurrent Powers Models p. 148

4.2 Changing Ministerial Oversight and the Relationship between the Regulator and Competition Authority p. 152

4.2.1 The Netherlands p. 152

Chapter 4 Merger Control: Hospital Mergers, General Merger Control and the Development of 'Healthcare-Specific' Merger Control in the Netherlands and England p. 161

2 Overview of General Merger Control as Applied in Dutch and English Healthcare p. 167

2.1 Market Definition and Hospital Mergers in the Netherlands and England p. 167

2.2 Dutch General Merger Control and Hospital Merger Cases p. 170

2.2.1 Zeeland Hospitals Merger p. 171

2.2.2 Tilburg Hospitals Merger p. 172

2.2.3 Albert Schweitzer Hospital-Rivas Care Group Merger p. 173

2.2.4 Amsterdam Universities' Hospitals Merger p. 174

2.3 UK General Merger Control and Hospital Merger Cases in England p. 176

2.3.1 Dorset Hospitals Merger p. 177

2.3.2 Surrey Hospitals Merger p. 178

2.3.3 Manchester Hospitals Merger p. 178

2.3.4 Cygnet Healthcare Ltd-Cambian Adult Services Merger p. 178

3 Jurisdictional and Substantive Aspects of Healthcare-Specific Merger Control p. 180

3.1 Jurisdictional Aspects p. 180

3.1.1 The Netherlands p. 180

3.1.1.1 Lower Turnover Thresholds p. 180

3.1.1.2 The Healthcare-Specific Merger Test and Merger Effects Report p. 183

3.1.2.1 The Requirement for a 'Relevant Merger Situation' - NHS Trusts and NHS Foundation Trusts p. 187

3.1.2.2 The Requirement for a 'Relevant Merger Situation' - PPUs p. 194

3.1.3 Relationship between the Jurisdictional Aspects and General Merger Control p. 195

3.2 Substantive Assessment Aspects p. 198

3.2.1 The Netherlands p. 198

3.2.1.1 Additional Assessment Criteria for the ACM p. 198

3.2.1.2 NZa Opinions p. 199

3.2.2 England - NHS Improvements Advisory Function under Section 79(5) HSCA 2012 p. 201

3.2.3 Relationship between the 'Substantive Assessment Aspects' and General Merger Control p. 204

4 Intentions Behind Healthcare-Specific Merger Tests and Lessons Emerging from their Design and Application p. 205

4.1 'Selling' Competition Reforms and Engaging with the Healthcare Sector p. 205

4.2 Ensuring Appropriate Oversight of Mergers in a Sector in Transition p. 207

4.3 Counteracting the Limitations of a Competition-Based Test p. 208

4.4 Elaborating the Appropriate Place of Merger Control in a Sector Heavily Dependent Upon Cooperative Relationships p. 210

1 Overview of Findings by Chapter p. 219

1.1 Competition Reforms in Dutch and English Healthcare and the Development of Competition Policy p. 219

1.2 Competition Law: Its Applicability and Application in Dutch and English Healthcare p. 222

1.3 Sectoral Regulation: The Relationship between the Competition Authority and Sectoral Regulator in Dutch and English Healthcare p. 224

1.4 Merger Control: General Merger Control, Hospital Mergers and the Development of Healthcare-Specific Merger Tests in the Netherlands and England p. 226

2 Conclusions by Reference to Broad Themes: Future Research and Policy Directions p. 227

2.1 The Need to Recognise the Distinctive Features of the Healthcare Sector p. 227

2.2 The Relationship between the EU Competition Law Framework and the Emergent National Competition Policies in Healthcare p. 231.

Notes:

Title from publisher's bibliographic system (viewed on 26 Mar 2019).

Other Format:

Print version:

ISBN:

9781780687926

Access Restriction:

Restricted for use by site license.